DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 2107-20 
Ref: Signature Date 

Dear : 

This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. 

Although you did not file your application in a timely manner, the statute of limitations was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo). A three-member panel of the Board, sitting in executive session, considered your application on 26 April 2021. The names and votes of the panel members will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies, to include the Kurta Memo, and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 11 March 2021, which was previously provided to you, and your response to the AO. 

You enlisted in the Marine Corps and began a period of active duty on 3 May 1988. On 16 March 1992, you were convicted by a civilian court of murder and felony murder. On 17 May 1992, a civilian jury recommended that you receive the Death Penalty on four counts.
 
On 15 November 1992, you were notified of administrative discharge action by reason of misconduct due to commission of a serious offense. After being afforded your procedural rights, you elected to waive your right to have your case heard before an administrative discharge board. On 6 January 1993, a staff judge advocate reviewed your case and found it to be sufficient in law and fact, and recommended your separation from the Marine Corps with an other than honorable (OTH) discharge. On 7 January 1993, the separation authority directed that your discharge from the Marine Corps for misconduct due to commission of a serious offense. On 8 January 1993, you were so discharged. 

A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition during your service. The AO noted that the preponderance of available objective evidence failed to establish you were diagnosed or suffered from a mental health condition at the time of your military service, or that your in-service misconduct could be attributed to a mental health condition.
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo. These included, but were not limited to your statement that you requested an upgrade to reflect your hard work and diligent attention to duty before a mental problem caused you to be absent without leave and to be arrested by civilian authorities. You assert you had no counsel to represent you, and your discharge occurred before your trial in state court. You believed that “innocent until proven guilty” was not applied in your case by the Marine Corps. You further assert that it has been over 28 years, and you no longer have a mental problem, you have rebuilt your life, and prison officials would give you a good report. You also state that you would like to join the American Legion. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that your misconduct, as evidenced by your civil conviction for very serious offenses and subsequent incarceration outweighed these mitigating factors. Additionally, the Board concurred with the AO in that that the preponderance of available objective evidence failed to establish you were diagnosed or suffered from a mental health condition at the time of your military service, or your misconduct could be attributed to a mental health condition. Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. 

You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely, 
5/11/2021